Criminal Appeal

Sex Crimes, Statute of Limitations, And Apprendi

California Penal Code section 803(g) permits the filing of a criminal complaint for certain sex crimes within one year of the date on which the identity of the suspect is conclusively established by DNA testing, even if the otherwise applicable statute of limitations period has already elapsed.

Division Five of California's First District Court of Appeal held today that Apprendi does not require submitting to the jury the question of whether the statute of limitations was properly extended pursuant to section 803(g). According to the Court, by providing for extension of the statute of limitations in certain circumstances, section 803(g) does not define the conduct constituting the underlying offense or establish the level of punishment applicable to the defendant’s conduct. Rather, section 803(g) only regulates the time at which child sexual abuse defined and punished elsewhere in the Penal Code may be charged. Although the right to maintain the action is an essential part of the final power to pronounce judgment, that right constitutes no part of the crime itself.

Moreover, the Court concluded that the defendant forfeited his right to challenge the applicable statute of limitations on appeal by failing to object at trial.

The Court also ruled that battery is a lesser included offense of lewd acts upon a minor. As a result, the trial court had a sua sponte duty to instruct the jury on the lesser included offense of battery, which it did not do here. Under the facts of this case, the Court determined that the defendant was prejudiced by the instructional error and reversed the relevant conviction.

The unanimous decision was authored by Justice Linda M. Gemello.

People v. Thomas, no. A111109 (Cal.Ct.App. (1st Dist., Div. 5) filed 1/18/07)

Priors Not Considered In Determining S.O.L. (CORRECTION - Holding Reversed on Rehearing)

CORRECTION (10/10/06): Last week I posted a summary of a California Court of Appeal opinion, People v. McSherry, no. B181229, which I described as holding "that the statute of limitations is determined by the maximum punishment for an offense, without considering the effect of a prior conviction allegation." Oddly, a colleague today mentioned the case and described it as an opinion on rehearing reversing course and finding that the longer felony statute of limitations applied. So I looked again, and he was right.

How did I get this entirely wrong? Well, it appears that the Court, instead of posting the new decision on rehearing, re-posted the original decision which in fact that been in favor of the defense. I suspect it was only posted like that for a very short time, although long enough for me to blog about it. I suspected this was the mistake (mostly because I couldn't believe I had read the opinion so wrong), but was only able to confirm it by checking the version of the opinion on Callaw (a.k.a. law.com/The Recorder), which still has the vacated opinion, originally filed on May 15, but posted on September 29.

People v. McSherry

C.A. 2nd
09-29-2006
B181229

Cite as 06 C.D.O.S. 9240

THE PEOPLE, Plaintiff and Respondent,

v.

LEONARD JAMES McSHERRY Defendant and Appellant.

No. B181229

In the Court of Appeal of the State of California

Second Appellate District

Division Three

(Los Angeles County Super. Ct. No. BA271123)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Kevin A. Enright, Judge.  Reversed.

COUNSEL

Robert S. Gerstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

Filed May 15, 2006

Leonard James McSherry appeals the judgment entered after conviction by jury of an attempt to molest or annoy a child under the age of 18 years. (Pen. Code, § § 664/647.6, subd. (a).)[FOOTNOTE 1] Based on a prior conviction of lewd act in violation of section 288, the trial court sentenced McSherry as a felon. (§ 647.6, subd. (c)(2).) Because McSherry's conduct constitutes a misdemeanor absent the prior conviction of lewd act, and prosecution of the offense was not commenced within one year as required by section 802, subdivision (a), the judgment must be reversed.

BACKGROUND

* * *

Here's the text of this post before the correction:

In an opinion filed on Sept. 28, 2006, Division Three of the Second Appellate District held that the statute of limitations is determined by the maximum punishment for an offense, without considering the effect of a prior conviction allegation. People v. McSherry (no. B181229). In McSherry, the defendant was accused of violating section 647.6(a) (attempt to annoy/molest a minor), which is a misdemeanor. Even though the district attorney also alleged prior similar offenses which made the current offense a felony, the statute of limitations is determined only by considering the penalty for the non-enhanced offense. In this case, that the meant the offense was time barred and the court vacated the conviction.

Judicial (i.e. Not Legislative) Retroactive Application of Statute of Limitations

SCOTUSblog reports that SCOTUS has requested that the State of Connecticut file a response to Michael Skakel's cert. petition (Skakel v. Connecticut, no. 06-52), which presents a follow-up question to Stogner v. California, 539 U.S. 607 (2003):

In Stogner v. California, 539 U.S. 607 (2003), this Court held that a state law authorizing a prosecution that the passage of time had previously barred violates the Constitution’s Ex Post Facto Clause. This Court’s cases have held that the Due Process Clause prevents the judicial branch from achieving, through a legal interpretation both unexpected and indefensible by reference to the law previously expressed, that which the legislative branch may not achieve under the Ex Post Facto Clause. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964); Rogers v. Tennessee, 532 U.S. 451, 461 (2001). In order to authorize a prosecution of petitioner, the Connecticut Supreme Court needed to overrule two of its prior unanimous decisions under which the limitations period had expired almost 20 years before the case was brought.

The question presented is whether a State violates the Due Process Clause of the Fourteenth Amendment when its highest court unexpectedly overrules its own binding interpretation of one of its statutes in order to authorize a criminal prosecution that the passage of time had previously barred.

Obstruction Adjustment for Perjury Conviction Improper Where Perjury Was Committed in Separate Civil Proceedings; Convictions Affirmed. U.S. v. Degeorge, no. 02-50365 (9th Cir., Aug. 30, 2004).

Obstruction Enhancement: The court remanded for resentencing because the trial court erred in imposing two-level upper adjustment for obstruction for perjury conviction, under USSG sec. 3C1.1. The adjustment does not apply where the perjury was committed in a separate civil case.

The appellant challenged the convictions on numerous grounds, including ...

Pre-indictment Delay. No presumption of prejudice from delay results from fact that statute of limitations would have run but for extension of the SOL by a district court judge under 18 USC 3292. No actual prejudice established.

Statutory Tolling By District Court Judge Under section 3292: The court rejected the appellant's argument that "a district court may issue an order under § 3292 suspending the statute of limitations only if the government is seeking evidence that 1) is not already in its possession and 2) is “material or otherwise essential” to the charges." The court also rejected appellant's argument, based on 3292's statement “the district court before which a grand jury is impaneled to investigate the offense” may toll the SOL, that no tolling is permitted unless the grand jury is actively investigating the offense and evidence has been presented to the grand jury.

Panel: D.W. Nelson, John R. Gibson (8th Cir.) (author), Graber

"[T]he statute of limitations for the offense of filing a false nomination paper ([Cal.] Elec. Code, § 18203) is four years after discovery. ([Cal.] Pen. Code, §§ 801.5, 803, subd. (c).)" People v. Guevara, no. B163177 (Cal.Ct.App. (2d Dist., Div. 3), July 29, 2004) (parital publ.).

Panel: Croskey, Kitching, and Aldrich (author)

Securities Violation (Cal. Corp. Code sec. 25110) Has Knowledge Requirement and is subject to 4-Year SOL. (People v. Salas, no. B159750 (Cal.Ct.App. (2/2) June 21, 2004)

Holdings. (1) Offense of sale of unqualified securities (Corp. Code, § 25110) is subject to a four-year statute of limitations: (2) Sec. 25110 is a general intent crime carrying a specific knowledge requirement. Trial court erred in failing to instruct on the knowledge requirement.

Fraud Convictions Affirmed: No Right to "Good Faith" Instruction; Offenses Not Time-Barred After Reinstatement Following Dismissal for Speedy Trial Violation; Evidence Sufficient.
Case: U.S. v. Shipsey, no. 02-10651 (9th Cir. Apr. 9, 2004)
Proceeding: Direct criminal appeal following re-trial upon remand.

Holdings: (1) Criminal defendant has no right to jury instruction on "good faith" when jury is adequately charged an intent element. (2) Reinstatement of counts within 6 months of dismissal without prejudice on speedy trial grounds following remand upon first appeal not time-barred by statute of limitations: "[W]here as here, the original indictment was timely returned, [18 U.S.C.] § 3288 allows reindictment within the grace period, where a Speedy Trial Act dismissal after the statute of limitations’ expiration is without prejudice." (3) Evidence was sufficient that use of wires was in furtherance of scheme; (4) Although defendant did not steal directly from pension fund, evidence was sufficient for conviction for theft from a pension fund. 18 U.S.C. §§ 664.

Authoring Judge: Cynthia Holcomb Hall and Susan P. Graber, Circuit Judges, and Charles R. Weiner, Senior District Judge (E.D.Penn.) (author)

Equitable Tolling Applies to 2255 Statute of Limitations.
Case: U.S. v. Battles, no. 00-15134 (9th Cir., Mar. 30, 2004)
Proceeding: Appeal from dismissal of motion for post-conviction relief as time barred.

Holding: "The statute of limitations contained in 28 U.S.C. § 2255 is subject to equitable tolling." Former counsel's failure to timely turn over portions of file may form basis for equitable tolling. Case remanded "for a further development of the record on the issue of just what counsel did or did not do, and on the issue of causation."

Authoring Judge (in case you couldn't tell from the word choices): Ferdinand F. Fernandez

Words Counsel Will Be Explaining to Client: antinomy, antiphony, dubiety, benignant.

Limitations Period For Conspiracy Starts Day After Last Over Act Comitted.
Case: U.S. v. Koonin, no. 02-50350 (9th Cir., Mar. 25, 2004)
Proceeding: Direct Criminal Appeal
Holding: "[W]hen computing the time within which a prosecution for conspiracy may be commenced, the statute of limitation begins to run the day after the last overt act is committed."

Authoring Judge: Circuit Judge Johnnie B. Rawlinson

No Ex Post Facto Violation Where Statute of Limitations Was Extended Before Expiration of Original Limitations Period. In People v. Superior Court (German), no. B170313, the California Court of Appeal (2d Dist., Div. 4) held that Penal Code section 803(g)---the special statute of limitations for sex offenses against children---did not violate the ex post facto clause when applied to the offenses in that case, which were committed between "between January 1, 1993, and January 31, 1995." The normal statute of limitations (sec. 800) did not expire as to those offense until January 31, 2001, well after the enactment of section 803(g), which was effective in 1994. The court easily distinguished Stogner v. California (2003) 539 U.S. ___, 123 S.Ct. 2446, in which the Supreme Court had held that a newly enacted statute of limitations cannot be applied to an offense where the original statute of limitations had expired prior to the new enactment. The court found support for this distinction in two other court of appeal post-Stogner decisions: People v. Robertson (2003) 113 Cal.App.4th 389 (5th Dist.) and People v. Renderos (2003) 114 Cal.App.4th 961 (1st Dist., Div. 3.)

Justice J. Gary Hastings authored the unanimous opinion.